Will decision hurt the top court?

Published: Wednesday, December 13, 2000

LAURIE ASSEOAssociated Press Writer

WASHINGTON {AP} The Supreme Court's 5-4 decision in the Florida election case was based on politics, not the law, some disappointed observers contend. But Chief Justice William H. Rehnquist and Justice Clarence Thomas said Wednesday the court doesn't work that way.

"Don't try to apply the rules of the political world to this institution," Thomas said in a televised question-and-answer session with high school students. "I have yet to hear any discussion in nine years of partisan politics among members of the court."

"We have no axes to grind, we just protect this," Thomas told the students, holding up a copy of the Constitution.

During Thomas' TV appearance, Rehnquist dropped by the Supreme Court's public information office to thank the staff for their work during the high-pressure election case. Told by reporters that Thomas had just said politics did not enter into the court's overall decision-making, the chief justice responded, "Absolutely, absolutely."

But some legal experts thought otherwise after the justices' Tuesday night decision ended the Florida vote recount and in effect gave George W. Bush the presidency over Al Gore.

"I feel betrayed by this opinion," said Vanderbilt University law professor Suzanna Sherry. "I've basically spent my career studying law and the Constitution as independent from politics, and this opinion goes a long way toward proving me wrong."

Sen. Patrick Leahy of Vermont, ranking Democrat on the Judiciary Committee, said, "The majority has dealt the court a serious blow by taking actions many Americans will consider to be political rather than judicial."

The ruling followed the court's familiar lineup conservatives Rehnquist, Thomas and Justices Antonin Scalia, Sandra Day O'Connor and Anthony M. Kennedy on one side, and liberals John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer on the other.

"This is not about some general principle of law. It's about making George Bush president," said L. Michael Seidman, Georgetown law professor. He called the justices' ruling "transparently and ineptly political."

Breyer's dissenting opinion said the split decision "runs the risk of undermining the public's confidence in the court itself ... we do risk a self-inflicted wound."

Choosing a president "is of fundamental national importance. But that importance is political, not legal," said Breyer's opinion, joined by Stevens and Ginsburg.

The unsigned majority opinion spoke of the "vital limits on judicial authority" but added, "it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront."

Pepperdine University law professor Douglas Kmiec said he believed the court acted for legal, not political, reasons. And, he said, "I don't think it's helpful for justices who are worried about institutional legitimacy to say the effect of the opinion is to undermine that institutional legitimacy."

Daniel Polsby, a law professor at George Mason University, contended the Florida Supreme Court's ruling that allowed the recount was a "sham proceeding" and the U.S. Supreme Court had to step in.

To liberals who believe the justices violated principles of judicial restraint by getting involved, "My reaction to them is going to be, 'Welcome to the party, you got here late,"' Polsby said. During the Earl Warren court era, conservatives accused the liberal chief justice's court of being too activist.

University of Virginia law professor A.E. Dick Howard said the court ran the risk that "the decision will be seen by many people as having effectively decided who the next president will be."

"The justices voting on last night's decision are in effect helping put in place the president who will choose their next colleagues," Howard said.

Justices have disagreed vigorously over many cases, but in this case Ginsburg sent a signal about the strength of her disagreement. Dissenting opinions traditionally end with the words "I respectfully dissent," as did Tuesday's opinions written by Stevens, Souter and Breyer.

In closing her dissent, Ginsburg wrote simply: "I dissent."

Nonetheless, Howard said he did not expect the decision to cause lasting rancor among the justices.

"This court is especially collegial," Howard said. "They've survived rhetoric before and this is not going to change that."

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